exhibit (d) (2)
SHARE OPTION AGREEMENT
SHARE OPTION AGREEMENT, dated as of December 12, 2001 (the
"Agreement"), between ARCTIC INC., a Utah corporation ("Purchaser"), and ALPNET,
INC., a Utah corporation (the "Company").
WHEREAS, simultaneously with the execution and delivery of this
Agreement, Purchaser and the Company are entering into an Agreement and Plan of
Merger, dated as of the date hereof (as may be amended from time to time, the
"Merger Agreement"), which provides, among other things, that Purchaser, on the
terms and subject to the conditions thereof, will acquire the Company by means
of a tender offer to be followed by a merger in which Purchaser will be merged
with and into the Company ("the Merger");
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Purchaser has required that the Company grant to Purchaser an option
to purchase a specified number of authorized and unissued shares of common
stock, no par value (the "Common Stock"), of the Company, upon the terms and
subject to the conditions hereof; and
WHEREAS, in order to induce Purchaser to enter into the Merger
Agreement and in consideration therefor, among other things, the Company has
agreed to grant to Purchaser the requested option.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein and intending to be legally bound the
parties hereto agree as follows:
1. The Option; Exercise; Adjustments. Subject to the terms and
conditions set forth herein, the Company hereby grants to Purchaser an
irrevocable option (the "Option") to purchase such number of authorized and
unissued Common Shares of the Company (the "Shares") which, together with the
shares of Common Stock beneficially owned by Purchaser and its controlled
affiliates at the time of exercise, would result in Purchaser beneficially
owning, immediately after such exercise, 90.1% of the outstanding Common Shares
of the Company at a purchase price of $.21 per Share (the "Purchase Price");
provided that in order to exercise the Option Purchaser must own at least 75% of
the issued and outstanding Common Shares of the Company prior to the time of
exercise of the Option. The Option may be exercised by Purchaser, in whole or in
part, at any time or from time to time after the consummation of the Offer (as
defined in the Merger Agreement) and prior to the termination of this Agreement.
In the event Purchaser wishes to exercise the Option, Purchaser shall deliver a
written notice to the Company (the "Stock Exercise Notice") specifying that the
closing of such purchase shall take place on the Closing Date (as hereinafter
defined).
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(a) In the event of any change in the number of issued and outstanding
Common Shares by reason of any stock dividend, stock split, split-up,
recapitalization, merger or other change in the corporate or capital structure
of the Company, the number of Shares subject to this Option and the Purchase
Price shall be appropriately adjusted to restore Purchaser to its rights
hereunder, including its right to purchase a number of Shares that would result
in Purchaser beneficially owning 90.1% of the Common Shares of the Company (on a
fully diluted basis) at an aggregate purchase price equal to the Purchase Price
multiplied by the number of Shares.
2. Conditions to Delivery of Shares. The Company's obligation to
deliver Shares upon exercise of the Option is subject only to the conditions
that:
(a) No preliminary or permanent injunction or other order issued by any
court of competent jurisdiction prohibiting the delivery of the Shares shall be
in effect; and
(b) The Purchaser (or its permitted assignees) shall have purchased
shares of Common Stock pursuant to the Offer.
3. The Closing.
(a) The closing for the purchase of the Shares shall take place at the
offices of Dechert, 2 Xxxxxxxxx' Xxx, Xxxxxx XX0X 0XX on the date specified in
the Stock Exercise Notice (the "Closing Date"). On the Closing Date, the Company
will deliver to Purchaser a certificate or certificates representing the Shares
in the denominations designated by Purchaser in its Stock Exercise Notice (which
notice shall also specify the amount of shares of Common Stock beneficially
owned by Purchaser and its controlled affiliates), and Purchaser will purchase
such Shares from the Company at a price per Share equal to the Purchase Price.
Any payment made by Purchaser to the Company pursuant to this Agreement shall be
made at the option of the Purchaser either by (x) delivery to the Company of a
certified, cashier's or bank check payable to the order of the Company, or by
wire transfer of federal funds to an account designated by the Company or (y)
delivery to the Company of a promissory note for the amount of the Purchase
Price, bearing interest at a floating rate per annum equal to the prime rate
charge by Citibank N.A. from time to time, which promissory note (plus accrued
interest) shall be due and payable upon demand not less than twenty days
following issuance thereof.
(b) The certificates representing the Shares may bear an appropriate
legend relating to the fact that such Shares have not been registered under the
Securities Act of 1933, as amended.
4. Representation and Warranties of the Company. The Company represents
and warrants to Purchaser that (a) the Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Utah and
has the requisite corporate power and authority to enter into and perform this
Agreement; (b) the execution and delivery of this Agreement by the Company and
the consummation by it of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of the Company and this
Agreement has been duly executed and delivered by the Company; (c) the Company
has taken all necessary corporate action to authorize and reserve the Shares for
issuance upon exercise of the Option and the Shares, when issued and delivered
by the Company to Purchaser upon exercise of the Option and payment of the
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Purchase Price as provided herein, will be duly authorized, validly issued,
fully paid and non-assessable and free of preemptive rights, and (d) the
execution and delivery of this Agreement by the Company and the consummation by
it of the transactions contemplated hereby do not require the consent, waiver,
approval, license or authorization of or any filing with any person or public
authority and will not violate, result in a breach of or the acceleration of any
obligation under, or constitute a default under, any provision of any charter or
by-law, indenture, mortgage, lien, lease, agreement, contract, instrument,
order, law, rule, regulation, judgement, ordinance, decree, or restriction by
which the Company or any of its subsidiaries or any of their respective
properties or assets is bound.
5. Representations and Warranties of Purchaser. Purchaser represents
and warrants to the Company that (a) Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the State of Utah and
has the requisite corporate power and authority to enter into and perform this
Agreement; (b) the execution and delivery of this Agreement by Purchaser and the
consummation by it of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of Purchaser and this
Agreement has been duly executed and delivered by Purchaser; (c) this Agreement
constitutes a valid and binding obligation of Purchaser enforceable against
Purchaser in accordance with its terms; and (d) as the Shares have not been
registered under the Securities Act of 1933, as amended (the "ACT"), in reliance
upon exemptions from registration for non-public offerings, the Shares may not
be sold or transferred unless the shares are registered under the Act or unless
the Company receives an opinion of counsel reasonably satisfactory to it that an
exemption from registration is available.
6. Specific Performance. The Company acknowledges that Purchaser will
have no adequate remedy at law if the Company fails to perform any of its
obligations under this Agreement. In such event, the Company agrees that
Purchaser shall have the right, in addition to any other rights it may have, to
specific performance of this Agreement and that it will not take any action to
impede Purchaser's efforts to enforce such right of specific performance.
7. Notice. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if given in the manner, and
addressed to the respective parties at the addresses, contained in the Merger
Agreement.
8. Entire Agreement; Amendments. This Agreement, together with the
Merger Agreement and the other documents referred to therein, contains the
entire agreement between the parties hereto with respect to the subject matter
hereof and supersedes all prior and contemporaneous agreements and
understandings, oral or written, with respect to such transactions. This
Agreement may not be changed, amended or modified orally, but may be changed
only by an agreement in writing signed by the party against whom any waiver,
change, amendment, modification or discharge may be sought.
9. Assignment. No party to this Agreement may assign any of its rights
or obligations under this Agreement without the prior written consent of the
other party hereto and any such attempted assignment shall be void and of no
effect. Notwithstanding the foregoing, Purchaser may assign its rights and
obligations hereunder to the holder of 100% of Purchaser's capital stock or to
any of its direct or indirect wholly owned subsidiaries, but no such transfer
shall relieve Purchaser of its obligations hereunder if such transferee does not
perform such obligations.
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10. Headings. The section headings herein are for convenience only and
shall not affect the construction of this Agreement.
11. Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when executed, shall be deemed to be an original
and all of which together shall constitute one and the same document.
12. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Utah (regardless of the laws that might
otherwise govern under applicable principles of conflicts of law thereof).
13. Termination. The Option shall terminate on the earlier of the
Effective Time (as defined in the Merger Agreement) and the termination of the
Merger Agreement in accordance with its terms.
All representations and warranties contained in this Agreement shall
survive delivery of and payment for the Option Shares.
14. Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
IN WITNESS WHEREOF, Purchaser and the Company have caused this
Agreement to be duly executed and delivered on the day and year first above
written.
ARCTIC INC.
By: / s / Xxxx Xxxxxxxxx
--------------------------
Name: Xxxx Xxxxxxxxx
Title: President
ALPNET, INC.
By: / s / Xxxx X. Xxxxxxx
--------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President Finance
& Chief Financial Officer
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